Jammu & Kashmir High Court - Srinagar Bench
Asif Ahmad Dar vs Ut Of J And K And Ors on 1 March, 2023
Author: Mohan Lal
Bench: Mohan Lal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (Crl) No. 313/2022
Reserved on: 28.12.2022
Pronounced on: 01.03.2023
Asif Ahmad Dar, Age 33 years;
s/o Ghulam Mohammad Dar;
r/o Redwani Bala District Kulgam;
(through his father Ghulam Mohammad Dar)
.....Petitioner(s)/Appellant(s)
Through: Mr. M. A. Qayoom, Adv.
V/s
UT of J and K and Ors. .....Respondent(s)
Through: Mr. Usman Gani, GA
CORAM:
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
1. Petitioner by invoking the jurisdiction of this Court in terms of Article 226 of the Constitution of India has sought the indulgence of this Court for issuance of Writ of Habeas Corpus commanding the respondents to release the petitioner from illegal detention by quashing Detention order No. 34/DMK/PSA/2022 dated 10.04.2022 issued by respondent No. 02 on the following grounds:-
(i) that the petitioner/detenue got missing on 21.11.2021 whereby the missing report was accordingly lodged by father of the petitioner with police on 23.11.2021, after filing the missing report petitioner/detenue was shown to petitioner on 27.11.2021 at P/S Sadder Anantnag where he was kept for one month and was shifted to District Jail, Mattan Anantnag in judicial custody in FIR No. 493/2021 of P/S Anantnag, no bail application was, however, filed by the detenue or by the petitioner before any court of law for releasing him in the aforesaid FIR, the detenue therefore continues in judicial custody though nothing was established against him during the investigation;
(ii) that respondent No. 02 has not provided copy of letter dated 08.04.2022 which was forwarded by SSP Kulgam in the form of dossier or any other material viz; copy of FIR, statements of prosecution witnesses recording under Section 161 Cr.P.C, etc. to the petitioner to enable him to make effective and meaningful representation to the detaining authority, the detenue has been detained by respondent No. 2 on vague, uncertain, untrue, and non-existent grounds;
(iii) that the grounds of detention are in English language whereas the detenue only understands Urdu or Kashmiri language, non-supply of the grounds of detention and other WP (Crl) No. 313/2022 relevant material in the language known to the detenue violates the provision of law and renders the detention order unsustainable in the eyes of law;
(iv) that the detenue/petitioner was already in judicial custody in FIR No. 493/2021, he had not applied for bail in the said FIR, there was no compelling reason for respondent No. 02 to detain the detenue under Public Safety Act, there was no material before the detaining authority that the detenue was likely to be released on bail in the aforesaid FIR, therefore, the detention order is unsustainable and requires its quashment;
(v) that the detenue/petitioner has been booked in FIR No. 493/2021 for commission of offences under Section 18,20, 38 of UAPA Act read with 7/25 Arms Act of P/S Anantnag, some of the offences under Sections 18/20 of UAPA are punishable upto life imprisonment, it is settled law that if criminal law is sufficient to deal with the activities of the detenue, taking recourse to provisions of preventive detention is unwarranted;
2. Respondent No. 02 (District Magistrate, Kulgam) has filed counter affidavit, wherein it has been specifically contended, that the petitioner has not approached the court with clean hands, the contentions made in the petition are baseless, as such merit outright rejection, the purpose of preventive detention is to detain a person and not to punish him for something that he has done but to prevent him from doing it. It is contended, that the detenue came to be detained under the provisions of Public Safety Act in terms of Detention Order No. 34/DMK/PSA/2022 dated 10.04.2022 issued by respondent No.2 (District Magistrate Kulgam), all the statutory requirements and constitutional guarantees have been fulfilled and complied with by the Detaining Authority, the detaining authority has passed the detention order after deriving subjective satisfaction in the matter, grounds of detention, order of detention as well as entire material relied upon by the detaining authority came to be furnished to the detenue well within the statutory period as provided under Section 13 of the Act, the warrant of execution was accordingly executed by the executing officer where the detenue was handed over to Superintendent Kotbalwal Jail Jammu for his lodgment, the contents of detention order/warrant and grounds of detention were read over and explained to the detenue in the language which he understands and in lieu whereof the detenue has subscribed his signatures on the execution report whereby the detenue was also well informed about his right of making a representation to the detaining authority or to 2 WP (Crl) No. 313/2022 Government against his detention. It is moreso contended, that activities of the detenue are prejudicial to the security, sovereignty and integrity of the State as well as of the country as the detenue has developed association with some active militants of the area and has through motivation started working as OGW for them and indulged in various subversive activities, the Advisory Board constituted under Section 14 of the J&K Public Safety Act 1978 has examined the instant case and found sufficient grounds for the detention of the detenue whereas the Government has confirmed the aforesaid detention order.
3. Mr. M. A. Qayoom, learned counsel appearing for the petitioner/detenue has vehemently articulated arguments and has sought the setting aside/quashment of the impugned detention order on the following counts:-
(i) It is argued, that petitioner/detenue has only been supplied copy of detention order, notice of detention and grounds of detention, but has not been supplied the copy of FIR and the statement of prosecution witnesses recorded by Investigating Officer U/S 161 or 164 Cr.PC to enable him to make effective representation against impugned detention order, detenue has right to make representation to the detaining authority or to the Government, non-supply of essential material has debarred the petitioner/detenue from making effective representation which constitute infraction of valuable right of the petitioner guaranteed to him under Article 22(5) of the Constitution of India r/w Section 13 of the J&K Public Safety Act 1978 and such failure would make the order of detention invalid and legally unsustainable. To buttress his arguments, learned counsel has relied upon the judgment of Supreme Court reported in AIR 2000 SC 2504 (State of Maharashtra & Ors. Vs. Santosh Shankar Acharya).
(ii) It is argued, that the impugned detention order and other documents are in the English language whereas the petitioner/detenue only understands Urdu/Kashmiri language, the detention order was not read over and explained to the petitioner in Urdu or Kashmiri language which is a pre-requisite for maintainability of the detention order, non-supply of detention order and all other documents in Kashmir/Urdu language violates the provisions of law, as such, the detention order deserves its quashment. To support his arguments, learned counsel has relied upon a decision of J&K High Court reported in 1992 Legal Eagle (J&K) 28 (Manzoor Ahmad Malik Vs. State & Ors.);
(iii) It is argued, that petitioner/detenue has been booked in FIR No. 493/2021 as is depicted from the contents of detention order/dossier, it is settled position of law that if the remedies to 3 WP (Crl) No. 313/2022 deal with the criminal activities of the petitioner/detenue are sufficient under ordinary law of land, the detention order is unsustainable and liable to be set aside. To support his arguments, learned counsel has relied upon the decisions viz; (i) AIR 2017 SC 2625 (V. Shanta Vs. State of Telangana & Ors),
(ii) Criminal Appeal No. 733 of 2021 (Arising out of SLP (Criminal) No. 4729 of 2021) (Banka Sneha Sheela Vs. The State of Telangana & Ors.);
(iv) It is argued, that the detenue/petitioner was already in custody in aforesaid FIR No. 493 of 2021 and was initially lodged in the District Jail Mattan from where he was shifted to Central Jail Kotbalwal Jammu, the detenue/petitioner did not apply for bail nor bail was granted to him, there was no material before the detaining authority that detenue was likely to be released on bail in the case in hand, the grounds of detention did not specify that the detaining authority has sufficient material/ cogent reasons for passing order of detention when the petitioner was already in custody. To support his arguments, learned counsel has relied upon, (i) 2020 (2) JKJ 102 HC (Younis Nabi Malik Vs. State of J&K and Others) & (ii) 1994 Supp (3) SC cases 195.
4. Learned GA for the respondents has recapitulated the grounds urged in the counter affidavit and has vehemently sought the dismissal of the writ petition and confirmation of the impugned detention order by canvassing arguments, that petitioner/detenue is OGW and associate of militant organization carrying out subversive activities against the Union Territory of Jammu & Kashmir and the country and was likely to commit similar offences if not prevented as it was important to detain him as the ordinary law had no deterrent effect on him. It is argued, that petitioner has no respect for law, as during Naka checking on 27.11.2021 at Bus Stand Anantnag, he was apprehended by Police Nafri deployed therein and after search, from his possession one magazine of AK-47 and 30 live rounds were recovered, petitioner was working as OGW of LeT and have got the ammunition from terrorist Basit Ahmad Dar, therefore, indicated for commission of offences punishable under Section 18, 20, 38 of UAPA Act read with 7/25 Arms Act of P/S Anantnag, and after his arrest and investigation, the petitioner is presently lodged in Central Jail Kotbalwal Jammu. It is vehemently argued, that from reliable agencies it has been learnt that even during custody, petitioner has not abstained from seditious and unlawful activities and is constantly involved in radicalization and motivation of inmates towards anti-national activities 4 WP (Crl) No. 313/2022 which are detrimental to the security of UT of J&K and integrity of the country. Prayer has been made for dismissal of the petition.
5. I have heard learned counsel for the petitioner and learned GA for respondents. I have also perused the contents of petition, counter affidavit filed by respondent No. 02 and the detention record made available by the respondents.
6. The Ist argument canvassed by learned counsel for the petitioner is, "that the detenue/petitioner has not been supplied the copy of FIR registered against him and statements of witnesses recorded under Section 161 Cr.P.C to enable him to make effective representation against the impugned detention order, for non-supplying of such material, petitioner‟s right to representation against his detention has been infringed/violated in terms of Article 22 (5) of Constitution of India r/w Section 13 of Jammu and Kashmir Public Safety Act 1978, vitiating the detention order."
In AIR 2000 SC 2504, (State of Maharashtra and Ors. - Appellants Vs. Santosh Shankar Acharya - Respondent) relied upon by learned counsel for the petitioner, Hon‟ble Supreme Court while quashing the detention order by observing that detenue was not supplied the copies of the material from which the detention order was made amounted to denial of representation to him and infraction of his valuable constitutional right guaranteed under Article 22(5) of Constitution of India, in Para (8) held as under:
8. If the contention of Mr. Deshpande to the effect that the moment an order of detention issued by an order under sub-section (2) of Section 3 of the Act is communicated to the State Government under sub-section (3) of the said Section thereof the State Government becomes the detaining authority, and therefore, the power under Section 21 of the Bombay General Clauses Act cannot be exercised by the said detaining authority is correct, then it has to be found out as to under which contingency Section 14 of the Maharashtra Act would apply. To our query neither Mr. Deshpande nor Mrs. Ramani, learned counsel appearing for the State Government could indicate any situation when such power could be exercised. It is too well known a principle of construction of statutes that the legislature engrafted every part of a statute for a purpose and the legislative intention is that every part of the statute should be given effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. We are cognizant of the principle ex majori cautela but it is difficult for us to apply the said principle to Section 14 of the Maharashtra Act and even hold the same to be tautologous in as much as it has never been shown as to what was the necessity for the legislature to protect the power under Section 5 WP (Crl) No. 313/2022 21 of the Bombay General Clauses Act, to an order of detention made under the Maharashtra Act. The only logical and harmonious construction of the provisions would be that in a case where an order of detention is issued by an officer under sub-section (2) of Section 3 of the Act, notwithstanding the fact that he is required to forthwith report the factum of detention together with the grounds and materials to the State Government and notwithstanding the fact that the Act itself specifically provides for making a representation to the State Government under Section 8(1), the said detaining authority continues to be the detaining authority until the order of detention issued by him is approved by the State Government within a period of 12 days from the date of issuance of detention order. Consequently, until the said detention order is approved by the State Government the detaining authority can entertain a representation from a detenu and in exercise of his power under the provisions of Section 21 of Bombay General Clauses Act could amend, vary or rescind the order, as is provided under Section 14 of the Maharashtra Act. Such a construction of powers would give a full play to the provisions of Section 8 (1) as well as Section 14 and also Section 3 of the Maharashtra Act. This being the position, non-communication of the fact to the detenu that he could make a representation to the detaining authority so long as the order of detention has not been approved by the State Government in a case where an order of detention is issued by an officer other than the State Government under sub-section (2) of Section 3 of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and the ratio of the Constitution Bench decision of this Court in Kamlesh Kumars case (supra) would apply notwithstanding the fact that in Kamlesh Kumars case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA.
Ratio of the judgment (supra) makes the legal proposition manifestly clear, that non-supply of essential documents/material basing the issuance of detention order deprives the detenue from making effective representation before the detaining authority or the Government which is infraction of the Constitutional right of the detenue as envisaged under Article 22(5) of Constitution of India read with Section 13 of J&K Public Safety Act which invalidates the detention order and makes it legally unsustainable. Ratio of the judgment (supra) squarely applies to facts of the case in hand. In the instant case, respondent No. 2 has not supplied copy of FIR No. 493/2021 alongwith statements of witnesses recorded by the IO in terms of Section 161 Cr. P.C. to the petitioner/detenue whereby the order of detention becomes legally unsustainable and liable to be quashed.
7. The 2nd argument urged by learned counsel for the petitioner is, "that the detenue only understands Urdu/Kashmiri language, the detention order was not read over to him in Urdu or Kashmiri language which is a pre- requisite for maintainability of detention order, non-supply of the detention order in the language which the detenue understands makes the detention order liable to be quashed."
6 WP (Crl) No. 313/2022In 1992 Legal Eagle (J&K) 28 (Manzoor Ahmad Malik Vs. State and Others) relied upon by learned counsel for the petitioner, detention order was quashed by J&K High Court while observing that the detention order alongwith essential detention material was not supplied to the detenue and read over to him in Urdu/Kashmiri language which he understood, which amounted to infraction of his legal right and depriving him from making effective representation, in paras 12, 13, 14 and 15 held as under:
12. Secondly, it has been emphatically averred in the petition on an affidavit that the detenue is an illiterate person and the grounds of detention were supplied to him in „English Language‟ and therefore he could not make a representation against his detention.
13. There is no counter to this allegation and therefore the court has to presume that the detenue is illiterate. In that case the detenue was to be supplied with a copy of the grounds of detention in a language, which he knew and understood, so as to enable him to make a representation against his detention. It is an established law that the grounds of detention are to be supplied to the detenue in the language, which he knows. If it is not done, it will deprive him of his legal and constitutional right to make an effective representation against his detention.
14. From the perusal of record, the contention of the petitioner is confirmed that he is illiterate. He has put his thumb impression on the receipt obtained from him; Merely saying that the grounds of detention were explained to the detenue in English and Urdu is not sufficient to observe the mandate of law.
15. On this ground also the detention order is liable to be quashed. Non-supply of grounds of detention to the detenue in the language he understands is flagrant violation of the mandate of law which bad deprived him of his constitutional right to make a representation against his detention as provided under Art. 22 (5) of the Constitution of India.
Ratio of the judgment (supra) makes the legal position abundantly clear that non-supply of grounds of detention to the detenue in the language he understands is flagrant violation of the mandate of law which vitiates the detention order. Applying the ratio of the judgment (supra) to the facts of the case in hand, it is apt to reiterate here, that the grounds of detention alongwith the relevant material has not been supplied to the detenue in Urdu/Kashmiri language which the detenue understands and the same is flagrant violation of law depriving the petitioner/detenue from making effective representation against his detention order as provided under 7 WP (Crl) No. 313/2022 Article 22(5) of the Constitution of India, whereby, the detention order is liable to be set aside/quashed.
8. The 3rd argument canvassed by learned counsel for the petitioner is, that the petitioner/detenue has been booked in FIR No. 493/2021, it is settled law that if the remedies to deal with the criminal activities of detenue/petitioner are sufficient under ordinary law of the land, the detention order becomes unsustainable and liable to be set aside/quashed.
In AIR 2017 SC 2625 (V. Shantha - Appellants Vs. State of Telangana and Ors. - Respondent) relied upon by learned counsel for the petitioner, Hon‟ble Supreme Court while quashing the detention order and observing that if the remedies to deal with the detenue are sufficient under the ordinary laws of the land, taking recourse to the provision of preventive detention is contrary to the Constitutional guarantees whereby the detention order becomes invalid and legally unsustainable, in para 12 held as under:
12. The detenu was the owner of Laxmi Bhargavi Seeds, District distributor of Jeeva Aggri Genetic Seeds. Three FIRs were lodged against the detenu and others under Sections 420, 120-B, 34, IPC and Sections 19, 21 of the Seeds Act, 1966. It was alleged that the chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to the farmers, and illegal gains to the accused. Whether the seeds were genuine or not, the extent of the yield, are matters to be investigated in the FIRs. Section 19 of the Seeds Act provides for penalty by conviction and sentence also. Likewise, Section 20 provides for forfeiture. Sufficient remedies for the offence alleged were, therefore, available and had been invoked also under the ordinary laws of the land for the offence alleged.
In Criminal Appeal No. 733 of 2021 (Arising out of SLP (Criminal) No. 4729 of 2021 titled Banka Sneha Sheela - Appellant versus The State of Telangana & Ors - Respondents) relied upon by learned counsel for the petitioner, Hon‟ble Supreme Court while holding that when the offences complained against detenue are of a nature which can be dealt under the ordinary law of land, taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined under Article 19 and 21 of Constitution, in para 20, 22 held as under:
8 WP (Crl) No. 313/202220. In Rekha V. State of Tamil Nadu, (2011) 5 SCC 244, a 3-Judge Bench of this Court spoke of the interplay between Articles 21 and 22 as follows:
"13. In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)] : (WLR p. 518 F-G) " ... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law." Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule.
14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India .xxx xxx xxx
17. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous and historical struggles, will become nugatory." This Court went on to discuss, 9 WP (Crl) No. 313/2022 in some detail, the conceptual nature of preventive detention law as follows:
"29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.
30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."
[emphasis supplied] In an important passage, this Court then dealt with certain general observations made by the Constitution Bench in Haradhan Saha v. The State of West Bengal (1975) 3 SCC 198 as follows:
"33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right 10 WP (Crl) No. 313/2022 to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.
34. Hence, the observation in SCC para 34 in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law.
35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence.
Preventive detention is often described as a "jurisdiction of suspicion" (vide State of Maharashtra v. Bhaurao Punjabrao Gawande [(2008) 3 SCC 613 : (2008) 2 SCC (Cri) 128] , SCC para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital.
36. It has been held that the history of liberty is the history of procedural safeguards. (See Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51 : 1995 SCC (Cri) 643] vide para 49.) These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. As observed in Rattan Singh v. State of Punjab [(1981) 4 SCC 481 : 1981 SCC (Cri) 853] :
(SCC p. 483, para 4) "4. ... May be that the detenu is a smuggler whose tribe (and how their numbers 11 WP (Crl) No. 313/2022 increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenus." xxx xxx xxx
39. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of judicial vigilance that is needed was aptly described in the following words in Thomas Pelham Dale case [(1881) 6 QBD 376 (CA)+ : (QBD p. 461) "Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue."" *emphasis supplied+
22. In Yumman Ongbi Lembi Leima Vs. State of Manipur (2012) 2 SCC 176, this Court specifically adverted to when a preventive detention order would be bad, as recourse to the ordinary law would be sufficient in the facts of a given case, with particular regard being had to bail having been granted. This Court held:
"23. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that the (sic exercise of) extraordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention.
24. Article 21 of the Constitution enjoins that: "21. Protection of life and personal liberty.--No person 12 WP (Crl) No. 313/2022 shall be deprived of his life or personal liberty except according to procedure established by law."
In the instant case, although the power is vested with the authorities concerned, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Articles 21 and 22(2) of the Constitution.
25. When the courts thought it fit to release the appellant's husband on bail in connection with the cases in respect of which he had been arrested, the mere apprehension that he was likely to be released on bail as a ground of his detention, is not justified. xxx xxx xxx
27. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention." This judgment was followed in Mungala Yadamma v. State of A.P. (2012) 2 SCC 386, as follows:
"7. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha case [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] , in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land. Taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution and sufficient grounds have to be made out by the detaining authorities to invoke such provisions.13 WP (Crl) No. 313/2022
8. In fact, recently, in Yumman Ongbi Lembi Leima v. State of Manipur [(2012) 2 SCC 176] we had occasion to consider the same issue and the three- Judge Bench had held that the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws, as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order.
9. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three-Judge Bench decision in Rekha case [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] we allow the appeal and set aside the order passed by the High Court dated 20-7-2011 [ The High Court dismissed the same vide Munagala Yadamma v. State of A.P., WP (Cri) No. 13313 of 2011, order dated 20-7-2011 (AP)] and also quash the detention order dated 15-2-2011, issued by the Collector and District Magistrate, Ranga Reddy District, Andhra Pradesh."
Ratios of the judgments (supra) settles the legal controversy, that if the offences complained of against the detenue are of a nature which can be dealt with under the ordinary law of land, the detention cannot be made substitute for the ordinary law for absolving the investigating authorities of their normal functions of investigating crimes and bringing the detenue/offenders to book, after all, preventive detention in most cases is 14 WP (Crl) No. 313/2022 for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Applying the ratios of the judgments (supra) to the facts of the case in hand, it is unambiguously reiterated here, that petitioner/detenue has been indicted in case FIR No. 493/2021 of Police Station Anantnag for commission of offences under Sections 18, 20, 38 of UAPA (Unlawful Activities Prevention Act) r/o 7/25 Arms Act. Offences under Sections 18 & 20 of UAPA are punishable upto maximum imprisonment for life and minimum upto 5 years, whereas, under the preventive detention for security of State as in the case in hand, the detenue/petitioner can be kept in detention for a maximum period of 2 years only. The offences complained of against the petitioner/detenue are of a nature which can be dealt with under the ordinary criminal law of the land and the petitioner/detenue can be kept in detention for minimum period of 5 years and maximum period of imprisonment for life. Therefore, taking recourse to the provisions of preventive detention under J&K Public Safety Act is contrary to the constitutional guarantees available to the petitioner/detenue enshrined in Article 19 and 21 of the Constitution of India which makes the impugned detention order legally unsustainable and liable to be quashed.
9. The 4th argument urged by learned counsel for the petitioner is, "that the petitioner was already in custody in aforesaid FIR No. 493/2021, there was no material before the detaining authority to the effect that despite the petitioner being in custody he was likely to be released on bail, law is well-settled that when the detaining authority has no sufficient reasons for detaining a person under Public Safety Act when the detenue is already in custody, the detention order deserves to be quashed."
In 2020 (2) JKJ 102 HC (Younis Nabi Naik Vs. State of J&K and Ors), the Division Bench of J&K High Court while quashing the detention order by observing that there was no material before the detaining authority that detenue was likely to be released on bail in the case in which he was arrested, in head note of the case law and in para 14 at Pages 102 & 105 held as under:-
Public Safety Act, 1978 Section 8 r/w Section 43(D) (5) of Unlawful Activities (Prevention) Act, 1967, Article 22(5) of the Constitution of India, Section 120-B of Ranbir Penal Code Svt. 1989 (1932 A. D.) and Section 5 of the Explosive Substances Act, 1908 - Preventive detention - Already in custody - Bail - Prosecution was alleging the recovery of the grenade from the appellant and that the case stood registered against the appellant under the 15 WP (Crl) No. 313/2022 provisions of ULA(P) Act - there was no material before the detaining authority to the effect that the detenue was likely to be released on bail on the case in which he stood arrested - Respondents have failed to supply the dossier, based whereupon the order of detention has been passed to the detenue - Appellant has been prevented from making an effective representation in accordance with law and his rights under Article 22 of the Constitution of India - There is no mention in the dossier of the supplementary report by the investigating officer which lead to the addition of the offences under the Unlawful Activities (Prevention) Act - Detention order quashed - Appeal allowed.
14. In support of his submissions, learned counsel for the appellant has placed reliance on the pronouncement of the Supreme Court reported at AIR 2000 SC 3675 Amrit Lal & Ors. Vs Union of India & Ors., wherein the Supreme Court had held that there must be cogent material before the officer passing the detention order that the detenu who stands arrested, is likely to be released on bail. It was categorically held by the Supreme Court that such conclusion must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention.
It was held that 'likelihood of detenu's moving an application for bail is not a cogent material'. In para 6, the Supreme Court has observed that 'likelihood of his moving an application for bail which is different from likelihood to be released on bail'. This reasoning in our view is not sufficient compliance with the requirements as laid down. Thus, merely the possibility of the detenu moving the bail application in a case in which he was in custody but had not obtained the bail order, has been held to be insufficient reason for passing of an order of detention under preventive detention laws.
Ratio of the judgment (supra) makes the legal proposition abundantly clear, that in a case in which the detenue was already in custody and has not obtained bail order and if there is no cogent material before the detaining authority that detenue was likely to be released on bail, the insufficient reasons by the detaining authority would quash the detention order.
In 1994 Supp (3) Supreme Court Cases 195 (Surya Prakesh Sharma Versus State of U.P and Others) relied by learned counsel for petitioner, Hon‟ble Supreme Court while quashing the detention order of murder accused and observing that absence of cogent material to show that detenue may again indulge in serious offences is ground for quashing of the detention order, in Para 5 observed as under:-
05. The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came up for consideration before a 16 WP (Crl) No. 313/2022 Constitution Bench in Rameshwar Shaw Vs. District Magistrate, Burdwan, [1964] 4 SCR 921. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat v. Union of India, AIR (1990) SC 1196 wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw (supra) answered the question in the following words (SCC p. 754, para 21) "The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention: and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention.
The expression "compelling reasons" in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
Ratio of the case law (supra) further makes the legal proposition mainfestly clear, that the detaining authority must spell out compelling/cogent reasons justifying the detention despite the fact that detenue was already in the detention and that after his release from custody he would again indulge in prejudicial/criminal activities. Applying of the ratios of the judgments (supra) and the principles of law enunciated therein to the facts of the case in hand, it is apt to reiterate here, that the grounds of detention dated 10.04.2022 spell out that petitioner/detenue has been arrested on 27.11.2021 in case FIR No. 493/2021 for commission of offences punishable under Sections 18, 20, 38 of UAPA (Unlawful Activities and Prevention Act) r/w Sections 7/25 of Arms Act of P/S Anantnag for the allegations, that during search operation/naka checking from the possession of petitioner/detenue one magazine of AK-47 rifle alongwith 30 live rounds were recovered, whereafter, he was lodged in District Jail Mattan. Execution report dated 21.04.2022 reveals that petitioner/detenue is presently lodged in Central 17 WP (Crl) No. 313/2022 Jail Kotbalwal Jammu. Threadbare perusal of the grounds of detention clearly demonstrate that detaining authority has not specified the compelling/cogent reasons or there was no material before the detaining authority to pass order of detention that the petitioner/detenue is likely to be released in near future and after his release from custody he would indulge prejudicial activities and it is necessary to detain him to prevent him from engaging in such activities. Furthermore, in terms of Section 43 D (5) of UAPA and proviso to the said Section, petitioner/detenue indicted for commission of offences under Section 18,20,38 of UAPA cannot be released on bail if the court is of opinion that there are reasonable grounds for believing that accusations against petitioner/detenue are prima-facie true. In absence of the compelling/cogent reasons, respondent No.2 (District Magistrate Kulgam) has no justification to detain petitioner/detenue under Section 8 of J&K Public Safety Act, 1978. The detention order, therefore, being legally unsustainable deserves its setting aside/quashment.
10. For all what has been discussed above, instant petition is allowed, and Detention order No. 34/DMK/PSA/2022 dated 10.04.2022 issued by respondent No. 02 (District Magistrate Kulgam) for detention of petitioner namely, Asif Ahmad Dar S/o Ghulam Mohammad Dar R/o Redwani Bala, District Kulgam, is quashed. Petitioner/detenue shall be released from preventive custody forthwith if not wanted in any other case. The detention record be handed over to learned counsel for the respondents under proper receipt.
(MOHAN LAL) JUDGE SRINAGAR 01.03.2023 "Amir"
Whether the order is speaking Yes/No Whether the order is reportable Yes/No 18